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Tuesday, July 29, 2014

Blades and Bushcraft Changes Forum Name Due to Trademark Registration of the Word “Bushcraft”

It appears we have our first casualty of the trademarking of the word buschraft by Buschraft USA LLC. Well, it’s not exactly the first casualty. We all know abotut the rest, but the name change by Blades and Buschraft is the first major casualty of the corporate ownership of the word.

The owners of Blades and Buschraft have made it clear that they will not reveal what actually happened to lead to the name change, and have only stated that the change was voluntarily made to avoid possible litigation. I know a bit about the back story on this one, but I will respect their wishes and not provide any more information on the subject.

The announcement was made last night. The new name of the forum is Blades and Bushlore. I must admit, it’s a clever move. It doesn’t alter the name by much, but let’s them avoid any litigation and threats from Buschraft USA LLC.

When it comes to suppression of free speech, it is often assumed, or even outright asserted by people interested in censorship that the only way censorship can occur is through direct action, i.e. suing the party who is being censored. That is not in fact true, and there is a doctrine in free speech jurisprudence which addressed censorship through non direct means. It is called the chilling effect of regulation. The doctrine is that once you pass legislation (or take any other actions) which establish that there can be a negative legal consequence to a specific action, then the mere existence of the regulation causes censorship through fear of said litigation, even if the litigation never occurs. It is a chilling effect on speech.

To give an example more directly related to the current issue, imagine that there is a small custom knife maker. Let’s call him Bob’s Bushcraft Knives Inc. Well, Bob’s Buschraft Knives Inc starts out making knives in his garage. He markets them under the name Bob’s Buschrat Knives Inc. His product is good, and he develops a good reputation. Eventually he manages to produce enough knives to support himself. One day however, he is contacted by another corporation. Let’s call them American Knives LLC. American Knives LLC tells Bob’s Bushcraft Knives Inc that they own a trademark on the word “knives”, and that if he wishes to continue to use the word in his business name, he has to pay them 10% royalties. Bob’s Bushcrat Knives Inc can not afford to make such payment, so he closes down, and has to re-open with a new name. Now, this is an example of direct action by the trademark owner.

However consider the following. imagine that Bob started making knives under the name Bob’s Bushcraft Knives Inc, but a month into operations, he discovered that American Knives LLC owns a trademark for the word “knives”. Do you think he will continue to use that name? After all, American Knives LLC has not sued him yet. Would he wait until they sue him a month from now, or a year, or five years? Of course he wouldn’t. He is not going to wait until the above example comes to pass. He will take preventative measures and simply abandon the name upfront and start his business under a different name. He can not afford to invest the time and effort to develop his reputation under a name which he is allowed to use just by the good graces on another corporation; a name that the other corporation can ask him to stop using at any time. That is the chilling effect of trademark ownership of a word.

Bob knows that trademarking the word “knives” is an atrocious abuse of the legal system and that it will never stand up in court, but he does not have the thousands of dollars it would take to fight a lawsuit from the much larger American Knives LLC. He has to do the only thing he can, and fold.

So, if we assume that Bushcraft USA LLC has never used their trademark of the word bushcraft against anyone, right now all of the other bushcraft forums, blogs and businesses exist just by the good graces of Bushcraft USA LLC. They have the legal right to come after anyone who uses the word bushraft in commerce. Maybe they will never use the trademark against anyone, maybe they will. Maybe it will be month from now, maybe a year from now. Maybe it will be when ownership of the corporation changes, or when the competitor does something they don’t like. If and when it happens however is entirely in the hands of Buschraft USA LLC. Considering that, can another forum afford to spend the time and effort to grow their membership and business under a name which they can use only by the graces of their competitor, and only until such time that the competitor decides it should be otherwise? Well, clearly Blades and Bushcraft decided that is not the smart thing to do. While I believe they would have prevailed in a legal challenge by Bhushcraft USA LLC, I completely understand why they would not want to risk the expense of litigation.

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About Wood Trekker

I love the outdoors. I was born and raised in Bulgaria, but currently live in the US. I don’t know much about the woods, but I’m happy to share the little that I do know. If you have any questions or comments, please contact me at gilmore.ross@gmail.com.